Online resources for the case of LabMD Inc. v. FTC (11th Cir.) and the FTC’s response after the decision

Did the LabMD Case Weaken the FTC’s Approach to Data Security?

Comment: The LabMD Decision Reins in the FTC’s Authority to Issue Broadly Worded and Ill-Defined Orders

FTC Official Website

LabMD, Inc., In the Matter of 

Tom Kulik: The 3 Biggest Data Security Takeaways From The 11th Circuit Decision In FTC v. LabMD

Kirk Nahra: Takeaways from the 11th Circuit FTC vs. LabMD decision

By Jim Harvey, Larry Sommerfeld and Kate Hanniford: LabMD: The End of the FTC in Cyber, or Just a New Path?

Dune Lawrence: A Leak Wounded This Company. Fighting the Feds Finished It Off

After the 11th Cir. decision, FTC tried to be more specific: 

LightYear Dealer Technologies, LLC, In the Matter of

FTC Administrative Guidelines (non-binding) 

FTC Proposed Amendment to the GLB Rules.


董  皓
  [内容摘要] 本文首先阐述了当前人权法研究中对“文化”的双重使用所造成的困惑,然后通过七个民族文化个案的实证研究,分析了文化相对主义和人权普世论各自存在的问题,并得出以下结论:(1)文化是在不断发生着变迁的文化,这种变迁对人们的实际权利有重大影响;(2)特定民族和地区的文化在变迁过程中,既可能偶然地符合现代人权标准,也可能对现代人权保障的实现构成障碍;(3)国家意志能够并一直影响着文化的变迁;(4)通过国家意志的影响,民族传统文化有可能在变迁中将现代人权观念主动纳入自己的体系中;(5)保护特定民族的文化和在该民族地区保护其它人权之间并没有不可逾越的鸿沟;(6)在注意到民族文化可以为国家意志所影响的同时,必须时刻牢记民族文化的变迁总要以原有的文化为基础和出发点;(7)人权领域对“民族文化权利”的保护,应该既保护既存的文化现象,又保护文化自主发展,这是国家用现代人权思想逐步影响民族文化的变迁的前提;(8)对民族文化的保护本身有可能对民族文化的进一步变迁产生影响。
  [关键词] 人权法、文化、变迁、实证研究、少数民族
* 本文最初为参加2003年欧盟国际人权法教师进修班的作业,经过多次修改后于2005年刊发。感谢郑永流教授、侯西勋教授、王启梁博士、班文战教授及人权法教师进修班上诸位老师的细致建议和批评。
董  皓
  [内容摘要] 本文首先阐述了当前人权法研究中对“文化”的双重使用所造成的困惑,然后通过七个民族文化个案的实证研究,分析了文化相对主义和人权普世论各自存在的问题,并得出以下结论:(1)文化是在不断发生着变迁的文化,这种变迁对人们的实际权利有重大影响;(2)特定民族和地区的文化在变迁过程中,既可能偶然地符合现代人权标准,也可能对现代人权保障的实现构成障碍;(3)国家意志能够并一直影响着文化的变迁;(4)通过国家意志的影响,民族传统文化有可能在变迁中将现代人权观念主动纳入自己的体系中;(5)保护特定民族的文化和在该民族地区保护其它人权之间并没有不可逾越的鸿沟;(6)在注意到民族文化可以为国家意志所影响的同时,必须时刻牢记民族文化的变迁总要以原有的文化为基础和出发点;(7)人权领域对“民族文化权利”的保护,应该既保护既存的文化现象,又保护文化自主发展,这是国家用现代人权思想逐步影响民族文化的变迁的前提;(8)对民族文化的保护本身有可能对民族文化的进一步变迁产生影响。
  [关键词] 人权法、文化、变迁、实证研究、少数民族
 * 本文最初为参加2003年欧盟国际人权法教师进修班的作业,经过多次修改后于2005年刊发。感谢郑永流教授、侯西勋教授、王启梁博士、班文战教授及人权法教师进修班上诸位老师的细致建议和批评。

Negligent infliction of emotional distress (NIED) Notes

Elements of Negligence

  1. Duty of care
  2. Breach
  3. Causation
  4. Injury

Duty of care: foreseeability 

Defendant owes a duty of care to all persons who are foreseeably endangered by his conduct.

  • Don’t as whether a particular defendant could have expected the result.  Instead, ask whether a “reasonable person” could do so
  • Don’t ask if a particular harm is foreseeable. Ask if the category or type of harm is foreseeable

Dillon v. Legg

Background: Prior to this case, only a person who is in the “zone of danger” can be awarded the damages of distress.  This rule applies to the victim’s sister.  However, ther mother was not in the zone of danger despite she had eyewitnessed the accident.

Rule: A defendant’s liability for emotional distress caused to a plaintiff largely depends upon whether the harm was reasonably foreseeable, and foreseeability can be evaluated by considering factors such as:

(1) located near the scene: whether a plaintiff was located near the scene of an accident as opposed to some distance from it,

(2) sensory and contemporaneous observance: whether the shock alleged by the plaintiff resulted from his sensory and contemporaneous observance of the accident, and

(3) closely related: whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Thing v. La Chusa, 48 Cal.3d 644 (1989)

Rule: A plaintiff may not recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if she was not an eyewitness to the act that caused the injury.

Facts: The mother was nearby, but did not hear or see the accident.

Reasoning: The guidlines in Dillon should be refined to create greater certainty.

A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff:

(1) is closely related to the injury victim;

(2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and

(3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

“Drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts.”

Justice Broussard Dissent: foreseeability and duty should determine liability in the case of negligent infliction of emotional distress, as they do in other aspects of tort law.

Goldstein v. Superior Court, 223 Cal.App.3d 1415 (1990)


Commerce Clause Tests

Liberal Test:

Legislation is proper under the Commerce Clause if, aggregating all the effects of the legislation, the regulation has a substantial effect on interstate commerce. (Wickard v. Fullburn; Heart of Atlanta Motel)

Developed (added) rule in Gonzales v. Raich:

  • It is irrelevant if the regulated activity is (1) purely local, or (2) not regarded as commerce.
  • If failure to regulate the activity would undercut the regulation of the interstate market in the commodity, the congress can do so

Conservative Test

It is established in Lopez and Morrison.  The Congress can regulate:

  • Channels of interstate commerce
  • Instrumentalities of interstate commerce, or persons or things of interstate commerce
  • actvitivies that substantially affect the interstate commerce

Test for finding “Substantial effect” to the interstate commerce:

(1) Economic activity: is there a direct link between the activity and the interstate commerce? The connection to economic activity cannot be too attenuated (Lopez)

(2) Jurisdictional element: is there a jurisdictional limitation (judicial hook) limiting the (challenged congress regulation) from reaching to activities in interstate commerce

(3) Congressional findings: whether the congress has findings of a substantial effect to the interstate commerce (however, in Morrison, the congressional findings in supporting its regulation has been limited — the final call should be subject to the Court)

(4) Provnice of the states: whether the statute affects areas traditionally left to the states.

The Economic Inactivity Rule

Per NFIB v. Sebelius, Congress can not regulate economic inactivity.

Ginsberg (in her dissent) argued that there are substantial effect from the mandatory insurance to the interstate commerce (they are not annuated).  Ginsberg also argued that even the economic inactivity rule applies, there Congress is not regulating inactivity in this case, as everyone will eventually participate in the health care market.


Tests for cases involving Equal Protection and Due Process Clauses

Equal Protection:

Principle: State shall not deny to any person within its jurisdiction the equal protection of the laws.

Two Step Assessment:

Step One: Suspect Classification, quasi-suspect classification or others?

Suspect Classification:  Race, religion, nation of origin –> Strict scrutiny

– immutable characteristics

– a discrete and insular minority

– historic discrimination

Quasi-suspect classification: gender –> intermediate scrutiny

Others: rational basis

Step Two: Levels of Scrutiny. 

(a) Strict scrutiny: applied to “compelling state interest”

  • the law is necessary to achieve a compelling purpose; no alternative solution
  • the law must be narrowly tailored

(b) Intermediate scrutiny: applied to “important state interest”

  • the law “substantially related” to the state interest

(c) rational basis: applied to “legitimate state interest”

  • reasonably or rationally related to the state interest
  • reasonable means to achieve the puproses

Due Process Clause

1. Substantial due process: Whether the government has an adequate reason for taking away a person’s life, liberty, or property.

2. Procedural due process: how the government enforces law must be fair. When the state or federal government acts in such a way that denies a citizen of a “life, liberty, or property” interest, the person must first be given notice and the opportunity to be heard

3. Two Step Analysis

Step One: whether the affected is a fundamental right?

Step Two: If yes, strict scrutiny; if not, rational basis.

Finding fundamental rights: in the constitution, about the liberty, autonomy or in the zone of privacy.

Test for finding fundamental rights:

Conservative approach:

  • implicit in the concept of the ordered liberty
  • deeply rooted in this Nation’s history and tradition

List of the recognized fundamenal rights (in addition to those explicitly numerated in the Bill of Rights):

  • right to marry and procreatn (Loving v. Virginia)
  • purchase and use birth control (Grisworld v. Connecticut)
  • custody of one’s own children and raise it as one sees fit (Palmore v. Sidoti)

Liberal approach: right to privacy – things fall into it (zone of penumbra) :

(1) things that are truly private to individual to decide (“Decisional Privacy”); or
(2) things happened in the geographically private places.

4. Strict Scrutiny in the context of due process — same to those in the Equal Protection analysis

美国同性婚姻合法化进程 Case Laws Related to Same-sex Marriage in the United States

Nine cases paved the way legitimizing the same-sex marriage under the federal law of the United States.

Constitution Basis – Due Process and Equal Protection Clause

Amendment V

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Amendment XIV

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

1、Loving vs. Virginia, 388 U.S. 1 (1967)

Facts: An African American woman married a Caucasian man. They were indicted for violating the Virginia law which banned interracial marriages. The couple filed lawsuit against the State of Virginia on the grounds of the Equal Protection and Due Process Cluases.

Issue: Whether a state law criminalizing interracial marriages is constitutional.

Supreme Court Holding: A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Key Takeways: 
(1) Virginia’s statute is motivated solely to restrict marriage based on race, and by precedent, such laws have been found to be a threat to equality.
(2) Race-based classifications are subject to strict scrutiny (or “most rigid scrutiny”).
(3) there is no legitimate overriding purpose independent of invidious racial discrimination that justifies Virginia’s classification.

2. Palmore v. Sidoti, 466 U.S. 429 (1984)

Facts: Father of a three-year-old girl sought sole custody of his daughter because his ex-wife cohabitated with an African American. The Florida court awarded custody to the father on the grounds that the mother had chosen a socially-unacceptable lifestyle by marrying an African American man.

Issue: Whether the removal of custody of her child from a woman on the grounds that she entered into an interracial relationship violated the Equal Protection Clause of the Fourteenth Amendment.

Holding: Yes.  The deprivation of custody of an infant child from her mother solely because of the risk of racial biases violates the Equal Protection Clause of the Fourteenth Amendment.

Key Takeways:
(1) The existence of the biases (to a girl for living in a interracial household) is not enough, by itself, to justify removing the infant child from her mother’s custody.
(2) Permitting removal of mother’s custody would give these biases effect.

3. Grisworld v. Connecticut, 381 U.S. 479 (1965)

Facts: Executive officer (Grisworld) and a doctor of a planned parenthood center was convicted, as a Connecticut statute prevented using contraception or assisting usage of it.

Issue: Does the Bill of Rights contain an implied right of privacy that permits the use of contraceptives by married persons?

Holding: Yes, an implied “right of privacy” exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception.

Key Takeawys:  

(1) “Penumbras”: The Third Amendment prohibits the quartering of soldiers in a person’s house without their consent. The Fourth Amendment protects against unreasonable searches and seizures. The Fifth Amendment protects against self-incrimination. The Ninth Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The protected activities in each of these Amendments are “penumbras” and represent a “zone of privacy” into which the government cannot intrude.

(2) The marital relationship is located within this “zone of privacy”, which was violated by the Connecticut law (which seeked to prohibit the use of contraceptives).

(3) The right of privacy in marriage is a concept older than the Bill of Rights that should necessarily be kept sacred and free from intrusion by the state.

(4) what consists of “fundamental rights”? (in Concurring opinions)
– They must look to the “traditions and [collective] conscience of our people” to determine whether a principle is “so rooted [there] . . . as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105.
– The Court stated many years ago that the Due Process Clause protects those liberties that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” . . . . In Gitlow v. New York, 268 U.S. 652, 666

4. Bowers v. Hardwick, 478 U.S. 186 (1986)

Facts: A Georgia statute criminalized sodomy. An adult male (Hardwick) was charged violating the statute in hardwick’s home.

Issue: Does the Constitution provide a fundamental right to engage in homosexual sodomy?

Holding: No. The Constitution does not provide a fundamental right to enage in homesexual sodomhy.  Only when an activity is “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition”, it would be considered fundamentally constitutional deserving of heightened protection.

Key Takeaways: 

(1) Tests for finding fundamental right: (a) whether a right is “implicit in the concept of ordered liberty”, and (b) whether a right is “deeply rooted in the history and tradition”.

(2) If it is not a fundamental right, then use test of rational basis: a law is rational if the purposes of the law themselves are rational AND the law is a reasonable means to accomplish those purposes.

(3) If there is fundamental right, then heightened/strict scrutitny: the state must show that it has a compelling state interest, not merely a rational state interest. It must also show that the law is a necessary means to accomplish that purpose, not merely a reasonable means.

(4) the law at issue passes rational basis scrutiny (not the heightened scrutity), because it is based on notions of morality.

(5) test for finding right to privacy: (i) interest of making certain decisions that are properly for an individual to make; (2) privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged.

Justice Powell’s Concurring: the Georgia anti-sodomy law (up to 20 years imprisonment) may be vulnerable based on the Eighth Amendment’s prohibition of cruel and unusual punishment.

Justice Blackmun’s Dissent: the issue of this case should be whether consensual sexual activities in home can be intruded by government.  The case is about the right to be let alone. “Sexual intimacy is a vital component to human existence.” Therefore, it should be accorded the privacy protection the Court has recognized in other Due Process cases.

Justice Stevens Dissent: Homosexuals have the same interest as heterosexuals in choosing their voluntary, private associations with others, and no neutral and legitimate state interest has been offered in support of selective application to homosexuals.

5. Romer v. Evans, 517 U.S. 620 (1996)


Facts: Caolorado voters passed an Amendment 2, which prohibited all governmental intervention designed to protect the status of persons based on their sexual orientation, conduct, practies, or relathinships. This Amendment 2 was challenged in this case.

Issue: Does a law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violate the Equal Protection Clause of the Fourteenth Amendment?

Holding: Yes. A law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violates the Equal Protection Clause of the Fourteenth Amendment.

Key Takeaways: 

(1) When to exclude the Equal Protection Clause: If a law neither burdens a fundamental right nor targets a suspect class, the law will be constitutional so long as it is rationally related to a legitimate state purpose.

(2) Two steps test to consider if a state law passes the Equal Protection Clause: First step: whether the group that has been identified by the law is a “suspected class”.  Second, then apply “strict scrutiny” or “rational basis” based on the answer of the first step.

(a) If the affected class is a “suspected class”, i.e. about race, nationality origin, religion (suspected classes)? If yes, then strict scrutiny.

(b) How to find suspected class?

– The class has “immuntable characterastics”: something that can hardly be hidden.

– The classs is “a discrete and insular minority”: discrete means separate from others; insular means stay to themselves.

– there is historical discrimination against the class.

(c) If the affected class is not subject to the “suspected classes”, then rational basis. The “rational basis”  for Equal Protection Clause: reasonable purposes and reasonable means to accomplish the purposes.

(d) Terms used in discussion of “Due Process Clause”: fundamental rights, liberty.

(f) Terms used in discussion of “Equal Protection Clause”: equality, suspected classification.

Justice Scalia’s dissent: Amendment 2 is not a targeted attack on the rights of homosexuals, but rather an attempt by voters to preserve traditional and long-held sexual mores. The majority attempts to overturn its prior decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and puts the Court’s weight behind the idea that opposing homosexuality is as offensive as exhibiting racial or religious bias. The Equal Protection Clause, which has previously been used to uphold the civil rights of racial and religious groups, should not be used in the present case to uphold the rights of homosexuals as a class. The majority actually declines to consider the issue of whether Amendment 2 bears a rational relation to a legitimate state purpose, because the majority is focused on asserting its view that discrimination against homosexuals is evil. This holding is unsupported by precedent and misguided in its conclusions.


6. Lawrence vs. Texas, 539 U.S. 558 (2003)


Facts: In a raid action (for checking weapon disturbance), Police observed that Lawrence and Tyron Garner was engaging in sexual act. They are charged same sex sexual intercourse according to the Texas law. They challenged the law.

Issue: Does the Due Process Clause of the Fourteenth Amendment include a right to liberty in individual decisions concerning the intimacies of their physical relationship?

Holding: Yes. The Due Process Clause of the Fourteenth Amendment includes a right to liberty in individual decisions concerning the intimacies of their physical relationship.

Court’s reasoning: The Court cited Grisworld v. Connecticut that a law prohibiting use of contraception had been found unconstitutional.  Then the Court discussed Bowers v. Hardwick, which upheld a law that generally prohibited the consenual acvitity of sodomy (either between gays or between straights).   The Court found that Bowers decision mistakenly framed the issue to be whether certain particular activity is protected.  The correct identification of the issue should be: whether a liberty to decide the intimate activities in private places is a fundamental right. The decision’s reliance on historical data and practices was also misplaced. Much of the information relied on by the court in Bowers has been called into question. Additionally, since the decision was issued, there has been an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. For example, the European Court of Human Rights held that laws prohibiting consensual same-sex conduct were invalid under the European Convention on Human Rights. The fact that the governing majority in a state has traditionally viewed a particular practice is immoral is not a sufficient reason for upholding a law prohibiting the practice. The private, consensual activity at issue in this case is within the realm of personal liberty which the government may not enter. Therefore Bowers is overuled.

Justice O’Connor’s Concurrence: The Bowers shall not be overuled, but in this case, the Texas law is unconstitutional because it violates the Equal Protection Clause.

Justice Scalia’s Dissent: The Bowers decision held that the right to engage in same-sex sodomy was not a fundamental right.  The majority does not provide sufficient basis for departing from stare decisis.  Even if social perceptions of sexual and other morality are changing, the appropriate method of changing the laws to reflect this would be in the legislature, not the creation of a new constitutional right by this court.


7. Perry v. Schwarzenegger (Hollingsworth v. Perry), 704 F. Supp. 2d 921 (N.D. Cal. 2010)


Facts: Proposition 8 of California law restricted the marriage to be between a man and a woman. Two same-sex couples were denied marriage licenses unde this law. They brought suit on the grounds that the law deprived their due process and equal protecgtion of the laws.  The proponents of Proposition 8 intervened to argue that the law advanced the state interests of: (1) preserving the tradition of marriage as between a man and a woman, (2) implementing social change slowly and incrementally, (3) promoting opposite-sex parenting in the best interests of children, (4) protecting the First Amendment rights, and (5) treating same-sex marriage differently from opposite -sex marriage.

Issue: Does a state law prohibiting the recognition of same-sex marriage violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment?

Holding: Yes, a state law prohibiting the reconition of same-sex marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Reasoning: The plaintiffs are not seeking for new rights but the fundamental right of marriage. Because marriage is a fundamental right, the strict scrutiny is appropriate for review of Proposition 8 under the Due Process Clause.  Similarly, strict scrutiny is also appropriate under Equal Protection Clause for review of a classification based on sex orientation.  Sex-orientation discrimination is different from the sex discrimination but related in that the Proposition 8 targets same-sex couples specifically due to sex. While the strict scrutiny is appropriate in this case, the targeted statute even cannot survive rational basis review: (1) tradition alone does not make a law rational, as the traditional role of marraige has disappear; (2) same-sex marriage does not have a negative effect on society or the institution of marriage; (3) no evidence that opposite-sex parenting is better for children than same-sex parenting; (4) evidence shows that the law does not affect the rights of individuals opposed to same-sex marriage; and (5) the intervinor’s premise that the same-sex marriage differs from opposit-sex marriage is fundamentally flawed. They are the same thing: marriage.  Therefore, Proposition 8 advances no legitimate government interests and fails rational basis review. Enforcement of Proposition 8 is permanently enjoined.

8. United States v. Windsor, 570 U.S. 744 (2013)


Facts: Windsor married a same sex person. The person died and left asset to Winsor.  Windsor claimed tax wavier but was refused by the federal government because a Defense of Marriage Act (“DOMA”) defines marrige to be between one man and one woman.  Windsor then sued. Obama directed that the federal government does not defend the case before the case.  However, the officials should continue enforcing the law until the case is ruled by the court.

Issue (same-sex related): Whether the federal statute’s exclusion of same-sex couples from the definition of marriage violates the Due Process Clause.

Holding: Yes, the provision in DOMA defining marriage as excluding same-sex couples is a deprivation of liberty guaranteed by the Fifth Amendment’s Due Process Clause.

– Though Congress may enact laws that impact marriage, regulation of marriage is within states’ exclusive power over domestic relations, subject to constitutional limits.

– The moral and sexual choices of homosexuals are protected by the Constitution. DOMA degrades those couples and harms their children.

Justice Scalia Dissent: The majority paints the Court as the ultimate arbiter of constitutionality above the democratically elected branches, but the Framers intended to create co-equal branches. … There are legitimate justifications for DOMA. DOMA settled choice-of-law questions and preserved federal benefits for opposite-sex married couples as they were when enacted.

Justice Alito Dissent: Same-sex marriage is an issue of public policy; the Constitution is silent. Substantive due process protects “fundamental rights . . . deeply rooted in this Nation’s history.” Same-sex marriage has no historical roots…. Windsor argues that DOMA violates equal protection, classifications based on sexual orientation should be subject to heightened scrutiny, and DOMA cannot survive that scrutiny. However, the scrutiny structure for equal-protection claims is not well suited for marriage laws. … DOMA does not impede states’ ability to define marriage; it only clarifies the category of people entitled to the benefits under federal law.

Justice Roberts: The federal government acted to preserve the fundamental definition of marriage, which was the traditional understanding throughout history and in the rest of the world. The majority goes too far in deciding that Congress’s only motive was “a bare desire to harm.” It is important to note that this decision does not impact states’ ability to maintain the traditional definition of marriage.

9. Obergefell v. Hodges, 576 U.S. _(2015)

Facts: Three same-sex couples tried to obtain certificate of marriage from a state where their marriage was not made.  The 6th Circuit consolidated the cases and reversed, holding that states were under no constitutional duty to license or recognize same-sex marriage.

Issue: Must states issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples?

Holding: Yes. Same-sex couples have a constitutional right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Reasoning: Marriage is a fundamental right protected by the Due Process Clause (e.g. Loving v. Virginia, where anti-miscegenation laws were struck down). Four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples: (1) the right to choose whether and whom to marry is “inherent in the concept of individual autonomy”; (2) the right serves relationships that are equal in importance to all who enter them; (3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and childrearing; and (4) lastly, marriage is the very “keystone of our social order” and foundation of the family unit. Similarly, while same-sex relationships were once forbidden, in Lawrence v. Texas, 539 U.S. 558 (2003), the Court held that same-sex couples had an equal right to intimate associations. Refusing to allow same-sex couples to marry denies them a myriad of legal rights, including those related to taxation, insurance benefits, intestate succession, spousal evidentiary privileges, child custody and support, etc. In this instance, the liberty interest protected by due process intersects with the right to equal protection, and same-sex marriage bans violate both. Therefore, states must issue marriage licenses to same-sex couples. Further, states must recognize lawful out-of-state marriages between same-sex couples. All contrary laws are struck down. The court of appeals is reversed.

Justice Scalia Dissent: An unelected committee of nine lawyers has stopped the debate and the democratic process on this issue.

Chief Justice Roberts Dissent: 

  • this should be left to individual states to decide
  • The Court has usurped the right of the people to make such a decision through the democratic process
  • the Court fails to conduct the traditional Equal Protection Clause analysis.